Where an employee had been dismissed on the ground of medical incapacity while his contractual...
Handling long-term absence
- This guide discusses the key issues and aspects of procedure when dealing with long-term ill health absences.
- It is a common misconception that an employee who is genuinely off sick cannot be dismissed – often compounded by the employee’s insistence that if off with stress, they should not be contacted.
- Ultimately, a dismissal for ill health is one of the fair reasons for dismissal under s. 98 of the Employment Rights Act 1996. It comes under the heading of capability.
- Where an employee has been absent from work for a month or more this generally falls into the category of long-term ill health.
- Keeping in regular contact with absent employees is even more important where an employee is absent for a long period. You should agree with the employee the preferred method for contact and each time contact is made you should ask when the employee expects to be able to return to work and whether there is anything you can do to assist/ease their return to work.
- Once an employee has notified you of their expected return to work date, hold a meeting before their return to discuss any adjustments that might be necessary, or that have been suggested by the doctor or requested by the employee.
- To speed up the employee’s return to work you could consider offering access to professional counselling whilst they are signed off and this might also be useful once the employee has returned to work. This could also be deemed a reasonable adjustment if the employee qualifies as ‘disabled’ under the Equality Act.
- Before an employee returns to work after a period of long-term ill health absence, consider asking an occupational health (OH) professional to carry out a health assessment and assist HR and managers in planning the employee’s return to work.
- Consider setting out a return-to-work plan which can be agreed with the employee and their line manager and any other staff likely to be affected. It might be necessary temporarily to adjust the employee’s working conditions and build in reviews to identify any problems. It might also be worthwhile appointing someone to co-ordinate the return-to-work process. If you are creating this type of plan, take into account the medical information you have obtained from the employee and any third parties (e.g. OH or their consultant).
- If part of your process is to obtain a medical report, you should be aware of the provisions in the Access to Medical Reports Act 1988 (AMRA). These provisions will apply if the medical practitioner you are using is someone who has previously been responsible for the clinical care of the employee (i.e. examination, investigation or diagnosis in connection with any form of medical treatment). It always includes the employee’s GP and may include the company doctor or specialist.
- You will also need to obtain the employee’s consent to obtain the GP’s notes in order to forward them to the company doctor or specialist.
- The main provisions under AMRA require you to obtain the employee’s consent before asking the doctor to conduct an assessment, and when requesting consent, you must inform the employee of a number of rights under AMRA. These include:
- the fact that they do not have to consent to the examination or to its disclosure to the company
- that they have the right to see the report before the company sees it or during the 6 months after the company has seen it. If the employee does ask to see the report before the company sees it, you need to let the doctor know when you instruct them
- that they are entitled to ask the doctor to amend any misleading or incorrect parts of the report before giving consent to its disclosure to the company. If the doctor declines, the employee can attach their comments to the report
- It is also worth including a provision in your employment contracts that an employee must undergo a medical examination at the request of the employer. This will not avoid AMRA applying, but it allows you to inform the employee that they are contractually obliged to agree to the examination. In practice, if an employee refuses to undergo a medical examination, you should write to them explaining that this means the business will have to make a decision without the benefit of medical advice and that it could result in dismissal (see below).
- Best practice is to treat the employee with sympathy at all times (particularly if the illness is work related), to obtain medical reports and to consult. If the employee returns to work, ensure that you continue to monitor and review the situation.
- If work-related stress is a cause for concern in your workplace, it is worth considering training your managers to recognise situations likely to cause stress, how to identify the symptoms of stress and how to deal with it.
- Bear in mind that medical information obtained about an employee will normally be ‘sensitive personal data’ for data protection purposes, and you should ensure that you take adequate steps to safeguard that data. Your privacy notice/data protection policy might already explain to employees what you will do with this type of information, how long it will be kept for and other relevant information so be sure to check those documents.
Consider the needs of the business
- Is it the case that the needs of the business are starting to outweigh the harshness of any dismissal? What disruption is the absence causing? For example, do other team members have to carry out additional duties?
- Identify a date by which the employee’s return is necessary.
Obtain a medical report
- Invite the employee for an appointment with OH. The employee must consent to this and has statutory rights to see any report under the Access to Medical Report Act 1988 (see above).
- Inform OH that the purpose of the meeting will be to assess whether the employee can return by a specific date and that the continuation of the employee’s employment is an issue.
- Ask OH whether the illness has ‘substantial and long-term adverse effect on their ability to carry out normal day-to-day activities’. If so, the employee will be disabled, and OH should be asked what adjustments to the job may enable a return to work.
Consider the medical evidence
- Review both fit notes and/or reports submitted by the employee and the OH report. It may be necessary to have a specialist’s report too.
- Can OH confirm that a return to work is likely by the given date? If so, await the employee’s return.
- If not, or if OH is uncertain, then ...
Invite the employee to a consultation meeting
- The invitation should be in writing and explain that the purpose of the meeting is to consider the likelihood of a return to work and possibly a termination of employment. The employee must be informed of their right to be accompanied by a union representative or colleague. If this is not practical, consider allowing an external friend to accompany them.
- Inform them that any additional medical evidence they can bring will be useful.
- Before the meeting consider whether alterations can be made to the job that will enable a return to work? Are alternative posts available within the company?
Hold the meeting
- Explain the company’s predicament. Unless there can be a return to work, the needs of the business may mean that employment has to be terminated. Refer to the medical evidence and ask the employee for their comments. All points raised by the employee should be responded to.
- If, at the end of the meeting the medical evidence and/or the comments of the employee cannot confirm a likely return to work, a provisional decision to dismiss can be made.
- Explain that there will be a further meeting, say, in 2 weeks’ time to finalise matters. Allow the employee to bring any further medical evidence.
- Again, there should be written notification to the employee of the purpose of the meeting and the right to be accompanied.
- At the meeting, review the situation and consider any new evidence. Listen to all points made by the employee.
- Is there the possibility of Permanent Health Insurance (PHI) or early retirement? A dismissal of an employee entitled to PHI benefits could be both unfair and a breach of contract. See, for example, Awan v ICTS UK Ltd.
- If a likely return to work cannot be confirmed, finalise the decision to dismiss.
- Confirm the dismissal in writing and give the employee a right of appeal.
- An illness that prevents an employee from attending the workplace may well be one that has a ‘substantial and long-term adverse effect on their ability to carry out normal day-to-day activities’. If so, they are likely to qualify as ‘disabled’ under the Equality Act 2010.
- You have an obligation to apply all adjustments that may be reasonable to assist the employee’s return to work. They can include modifications to the workplace, changes to the employee’s duties and a move to alternative employment. You do not though have to create a new job for the employee.
- It is for this reason that it is important to obtain the medical report at an early stage.
The employee will not attend meetings
- A tribunal will understand that there is only so far an employer can go. Whilst you must be sympathetic at all times, if the employee will not attend either an OH examination or a consultation meeting, they should be warned that decisions will be made in the absence of a medical report and/or consultation meeting.
- If the employee ignores this warning by a continued refusal, a tribunal will understand that you tried your best.
The employee will not permit communication from the employer
- As above, once you have explained the necessity for communication and meetings, a tribunal will understand the position.
The employee is off long-term sick, but still has several weeks of sick pay to run
- If your sick pay clause does not allow for a dismissal before the expiry of sick pay, then the employee will be justified in thinking that sick pay should run out before any dismissal takes place.
- There are, though, exceptions. In some situations, the needs of the business for a quick resolution to the matter will be paramount. So long as these are clearly explained to the employee, you need not await the expiry of sick pay before any dismissal.